Whether, under Ashe v. Swenson, 397 U.S. 436 (1970), and Yeager v. United States, 557 U.S. 110 (2009), a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause?
Ashe v. Swenson held that the collateral estoppel aspect of the Double Jeopardy Clause bars a new prosecution that depends on a fact necessarily decided in the defendant’s favor by an earlier acquittal. In United States v. Powell, 469 U.S. 57 (1984), however, the Court held that, in a single trial, the jury’s acquittal on one count does not invalidate the jury’s valid conviction on another count, even if the conviction is logically inconsistent with the acquittal, while in Yeager the Court held that when a jury acquits on one count and hangs on another, the acquittal is given preclusive effect under Ashe and prevents retrial of the hung count, even if the acquittal was logically inconsistent with the hung count. This case raises the question of whether, for purposes of Ashe’s collateral estoppel analysis, a vacated conviction that is logically inconsistent with an accompanying acquittal is more like the valid conviction in Powell or the hung count in Yeager.
While this issue apparently arises infrequently, it is significant when it does arise because, as Bravo-Fernandez argues, “prosecutors routinely pile on charges upon charges, either to obtain leverage against defendants or to increase the chances the jury will convict at least on something. The more charges, however, the more likely the trial will result in split, inconsistent verdicts and reversible trial errors.” Cert. petition at 2. To illustrate the point, consider Bravo-Fernandez’s case. He and a co-defendant were charged with federal program bribery in violation of 18 U.S.C. § 666 as well as with conspiring and traveling to violate § 666. The jury acquitted them of the conspiracy and traveling charges, but convicted them of the predicate bribery offense. The bribery convictions were vacated on appeal because they rested on improper jury instructions. 790 F.3d at 43-45.
When the case was back in district court, the defendants argued they could not be retried for bribery because, under Ashe, the acquittals for conspiracy and traveling depended on a finding that petitioners did not violate § 666, and the acquittals thus barred retrial for that offense. But in conducting the Ashe analysis, should the vacated convictions be considered when determining what the jury necessarily decided when it acquitted on the conspiracy and traveling counts? The defendants argued “no.” Powell didn’t apply here, they claimed, because it concerned valid convictions, not vacated convictions, which are like hung counts in that they have no final legal effect; thus, as in Yeager the acquittals can be used to determine what the jury decided under Ashe, but the vacated guilty findings on the bribery charges can’t be used. The First Circuit disagreed, citing Yeager‘s reasoning that a hung count represents not a jury decision, but a failure to decide; thus, the court held, vacated counts should be treated differently from hung counts because they are jury decisions, and therefore vacated convictions on some counts do potentially bear on the question whether the jury, in acquitting on other counts, necessarily decided an issue in a manner contrary to what the government would have to prove in renewed prosecutions. 790 F.3d at 49-52.
As is usual with a cert grant, there’s a lower court split on the issue: Three state supreme courts (Michigan, New Mexico, Iowa) have treated vacated convictions like hung counts, while two other circuits (the Second and Fifth, both before Yaeger was decided) and New Jersey and D.C. have taken the same approach as the First Circuit. 790 F.3d at 51; Cert. petition at 10-13. Neither Wisconsin nor the Seventh Circuit have weighed in, so this decision won’t change state or circuit precedent.
Bravo-Fernandez also raised a second issue: Whether the district court’s entry of a judgment of acquittal based on the reversal of the bribery conviction, and subsequent retraction of that judgment based on its re-interpretation of the court of appeals’ mandate, violated the Double Jeopardy Clause under Evans v. Michigan, 133 S.Ct. 1069 (2013). The Court did not grant review on this issue.